McCoy (ID 76894) v. Kansas Department of Corrections et al

Filing 25

NOTICE AND ORDER TO SHOW CAUSE Plaintiff is granted to and including December 18, 2017, in which to show good cause in writing why this action should not be dismissed. Show Cause Response due by 12/18/2017. The Court's previous order directing Defendants to file an answer or other responsive pleading within 14 days of receipt of the amended Martinez report 23 is stayed at this time. Signed by District Judge Sam A. Crow on 11/17/2017. Mailed to pro se party DeRon McCoy, Jr. by regular mail. (mls)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

DERON MCCOY, JR.,
Plaintiff,
v.

CASE NO. 17-3014-SAC

JAMES HEIMGARTNER, et al.,
Defendants.

NOTICE AND ORDER TO SHOW CAUSE
On January 20, 2017, Plaintiff, a state prisoner appearing pro se, filed a 42 U.S.C. § 1983
civil rights complaint. The Court conducted a preliminary review of the complaint, dismissed a
portion of Plaintiff’s claims and five defendants, and found that the proper processing of the
remainder of Plaintiff’s claims could not be achieved without additional information (Doc. #10).
Interested Party Kansas Department of Corrections (KDOC) filed a Martinez report on October
3, 2017 (Doc. #15) and an amended Martinez report on November 13, 2017 (Doc. #24). After
reviewing the Martinez report in conjunction with Plaintiff’s complaint, the Court finds that the
remainder of Plaintiff’s complaint is subject to dismissal for failure to state a claim.
As fully explained in the Court’s August 11 order (Doc. #10), Plaintiff’s only remaining
claim involved the defendants’ failure to destroy the erroneously recorded calls with Plaintiff’s
attorney. The Court previously determined that the recording of the calls did not state a claim for
a violation of Plaintiff’s constitutional rights because he did not suffer actual prejudice or injury
as a result of the recording, the defendants did not act deliberately in recording the calls, there is

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no allegation Defendants actually monitored the calls, and Plaintiff had notice of the recording
and an alternative way of communicating with his attorneys. See Doc. #10.
The Court was troubled by Defendants’ apparent failure to destroy the recordings once
they had notice privileged calls had been recorded. The amended Martinez report demonstrates
that the recordings of those calls have been destroyed. See Doc. #24, p. 2; Doc. #24-4. While it
took Defendants almost a year to effectuate the destruction, Plaintiff has not alleged any harm or
prejudice resulting from the delay. The Court does note the apparent unfairness of Plaintiff
having to file this lawsuit to force Defendants to do what they should have done without court
intervention. However, because Mr. McCoy has not stated a claim for a violation of his rights
under the Constitution or federal law as required for a § 1983 action, his complaint is subject to
dismissal pursuant to 28 U.S.C. §§ 1915A(b).
Plaintiff is therefore required to show good cause why his complaint should not be
dismissed. The failure to file a timely, specific response waives appellate review of both factual
and legal questions. Makin v. Colo. Dept. of Corr., 183 F.3d 1205, 1210 (10th Cir. 1999).
Plaintiff is warned that his failure to file a timely response may result in the complaint being
dismissed for the reasons stated herein without further notice.
IT IS THEREFORE ORDERED that Plaintiff is granted to and including December
18, 2017, in which to show good cause, in writing, why Plaintiff’s complaint should not be
dismissed for the reasons stated herein.
IT IS FURTHER ORDERED that the Court’s previous order directing Defendants to
file an answer or other responsive pleading within 14 days of receipt of the amended Martinez
report (Doc. #23) is stayed at this time.
IT IS SO ORDERED.

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DATED: This 17th day of November, 2017, at Topeka, Kansas.

s/_Sam A. Crow_____
SAM A. CROW
U.S. Senior District Judge

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